Chief Justice John Roberts used his year-end report on New Year’s Eve to denounce the threats being made against the Court and its members by Democratic politicians and groups, including threats to pack the Court to force an immediate liberal majority. Roberts referred to such threats as efforts to exercise “inappropriate political influence” on the Court in contravention of our constitutional values and traditions.
We have been discussing the ramped up threats from Democratic leaders that the Court will either vote with the liberal justices on key issues or face “consequences,” including court packing. Recently, Sen. Elizabeth Warren (D., Mass.), a former law professor, became the latest to voice such reckless views.
What Democratic members are demanding is raw court packing to add four members to the Court to give liberals an instant majority — a movement denounced by figures like the late Justice Ruth Bader Ginsburg and Justice Stephen Breyer.
Last year, House Judiciary Committee Chair Jerry Nadler, D-N.Y., Sen. Ed Markey, D-Mass, and others stood in front of the Supreme Court to announce a court packing bill to give liberals a one-justice majority. This follows threats from various Democratic members that conservative justices had better vote with liberal colleagues . . . or else.
Sen. Jeanne Shaheen, D-N.H., recently issued a warning to the Supreme Court: reaffirm Roe v. Wade or face a “revolution.” Sen. Richard Blumenthal previously warned the Supreme Court that, if it continued to issue conservative rulings or “chip away at Roe v Wade,” it would trigger “a seismic movement to reform the Supreme Court. It may not be expanding the Supreme Court, it may be making changes to its jurisdiction, or requiring a certain numbers of votes to strike down certain past precedents.”
Senate Majority Leader Chuck Schumer also declared in front of the Supreme Court “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price.”
For her part, Rep. Alexandria Ocasio-Cortez, D-N.Y. questioned the whole institution’s value if it is not going to vote consistently with her views and those of the Democratic Party: “How much does the current structure benefit us? And I don’t think it does.” Warren seems to be channeling more AOC than FDR. Roosevelt at least tried to hide his reckless desire to pack the Court by pushing an age-based rule. It was uniquely stupid. The bill would have allowed Roosevelt to add up to six justices for every member who is over 70 years old. Warren, like AOC, wants the Democratic base to know that she is pushing a pure, outcome-changing court packing scheme without even the pretense of a neutral rule.
Despite the fact that the Court has more often voted on non-ideological lines (and regularly issued unanimous decisions), Warren denounced the Court as an “extremist” body that has “threatened, or outright dismantled, fundamental rights in this country.” Those “fundamental” values do not apparently include judicial independence.
Now Roberts appears to have responded. His report is striking in its measured and deliberative tone in comparison to the often reckless rhetoric of these politicians. He waited to address the year in review for his court and the 107 district and appeals courts across the country. However, he included the following lines that are clearly directed toward Congress and extreme Democratic groups like Demand Justice:
“Decisional independence is essential to due process, promoting impartial decision-making, free from political or other extraneous influence. The Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government.”
The criticism comes after new polling shows that Roberts is the most popular government official in the country, a fact that led some on the left to express almost apocalyptic alarm.
He is not the only justice who is speaking out to blunt the attacks on the Court. Liberal Justice Stephen Breyer chaffed at the claim that this is a “conservative” court and noted “The chief justice frequently speaks on this subject as well and says, no, no: we don’t look at our rulings from the point of view of our personal ideology.”
Justice Thomas criticized those who seem intent on diminishing the authority or respect for the Court: “the media makes it sound as though you are just always going right to your personal preference…They think you become like a politician. That’s a problem. You’re going to jeopardize any faith in the legal institutions.”
Justice Amy Coney Barrett recently told an audience that “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks.”
However, as discussed in my Hill column, the attacks are likely to increase in this key election year with so many major decisions ticking away on the Court docket. The type of demagoguery denounced by Chief Justice Roberts is now going mainstream with our leaders, the media, and various advocacy groups. Yet, Democratic strategists are finding that selling court packing and attacking justices is not resonating outside of the same 30 percent of voters on the left. Instead, many view what is “dire for democracy” is the effort to destroy one of the core institutions in our constitutional system.